SHAWN GREEN CLAIMANT APPELLANT v. SHAWN GREEN CLAIMANT APPELLANT PRO SE (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Claimant, a prisoner incarcerated at the Elmira Correctional Facility, filed a claim that sought damages “due to various improprieties imposed upon him via disciplinary actions.”   The Court of Claims denied claimant's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the claim.   The court determined, inter alia, that defendant's employees acted within the scope of their authority and followed applicable rules, and thus were therefore entitled to absolute immunity.   Although claimant contends on appeal that the court erred in denying his motion, we note that defendant, as an alternative ground for affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546), contends on appeal that the claim should have been dismissed because the court lacked subject matter jurisdiction.   We agree.   Although defendant did not raise that contention in support of its cross motion and thus failed to preserve it for our review (cf.id.), we note that a question of subject matter jurisdiction may be raised at any time (see Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718;  Moulden v. White, 49 AD3d 1250, 1250–1251).

In determining whether the Court of Claims has subject matter jurisdiction over a claim, the initial question is “[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim” (Matter of Gross v. Perales, 72 N.Y.2d 231, 236, rearg. denied 72 N.Y.2d 1042;  see Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1144, lv denied 12 NY3d 712;  Sarbro IX v State of N.Y. Off. of Gen. Servs., 229 A.D.2d 910, 911).   Regardless of how a claim is characterized, one that requires, as a threshold matter, the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims (see Gross, 72 N.Y.2d at 236;  Buonanotte, 60 AD3d at 1143–1144;  Matter of Salahuddin v. Connell, 53 AD3d 898, 899).   Although claimant characterized his claim as one for money damages, upon our review of the record we conclude that adjudication of his claim requires review of the underlying administrative determination, over which the Court of Claims lacks subject matter jurisdiction (see Salahuddin, 53 AD3d at 899;  Lublin v. State of New York, 135 Misc.2d 419, affd 135 A.D.2d 1155, lv denied 71 N.Y.2d 802;  see generally Gross, 72 N.Y.2d at 236).

Frances E. Cafarell

Clerk of the Court